F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 16 1997 TENTH CIRCUIT PATRICK FISHER Clerk

ANDRES T. DEPINEDA, named as petitioner on behalf of Manuel Sesario Depineda,

Petitioner-Appellant,

v. No. 97-1335 (D.C. No. 97-D-1310) RANDY HENDERSON, C.M.C.; (District of Colorado) ATTORNEY GENERAL FOR THE STATE OF COLORADO; SUSAN JONES, Assistant Superintendent; and FRANK MILLER, Assistant Superintendent,

Respondents-Appellees.

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

Andres T. Depineda filed a pro se action in the district court seeking a writ of

habeas corpus on behalf of his brother Manuel Sesario Depineda. Manuel is an abusive

filer already sanctioned by this court for his persistent frivolous litigation in an order

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. enjoining him from litigating unless represented by a licensed attorney. Depineda v.

Hemphill, 34 F.3d 946 (10th Cir. 1994). This proceeding is a clumsy and thinly

disguised attempt to evade our injunction and avoid the consequences. The district court

properly held Andres Depineda lacked standing to bring this wholly frivolous action, and

we AFFIRM that holding. Andres and Manuel Depineda are further put on NOTICE

that any attempt by either or both of them to evade the injunction ordered restricting pro

se litigation by Manuel Depineda may result in further sanctions by this court. The

application to proceed without payment of fees is DENIED and the”Motion to Dismiss

Sua Sponte” is DENIED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

John C. Porfilio Circuit Judge

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