concurring in part and dissenting in part.
While I agree with the Court’s conclusion that the district court properly denied defendant’s section 2255 motion, I respectfully dissent on the sanctions question.
After researching the question as exhaustively as I could, I have found no case in which a circuit court has, pursuant to Rule 11 of the Federal Rules of Civil Procedure, imposed sanctions upon a defendant in the context of a habeas corpus proceeding, whether brought pursuant to 28 U.S.C. § 2254" or 28 U.S.C. § 2255.
Rooted in “immemorial antiquity” predating the Magna Carta, the Great Writ of habeas corpus has preserved human liberty in the face of illegitimate governmental restraints upon our most precious freedoms. Fay v. Noia, 372 U.S. 391, 400, 83 S.Ct. 822, 828, 9 L.Ed.2d 837 (1963) (quoting Secretary of State for Home Affairs v. O’Brien, [1923] A.C. 603, 609 (H.L.)). “[I]ts function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints.” Fay v. Noia, 372 U.S. at 401-02, 83 S.Ct. at 838-29. For federal courts, “there is no higher duty than to maintain it unimpaired.” Id. at 400, 83 S.Ct. at 828 (quotations and citations omitted).
Given the role of the Great Writ throughout our history, and even long before, we should be loath to impose procedural rules that might impede a prisoner’s effort to seek that remedy. See Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969) (“The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.”). We should consider such action only if it is clearly authorized and indispensable to prevent frivolous litigation. In my view neither condition has been met.
The federal habeas corpus proceeding provided by 28 U.S.C. § 2255 is “a further step in the criminal case in which petitioner is sentenced.” United States v. Frady, 456 U.S. 152, 182-83 & n. 6, 102 S.Ct. 1584, 1601-02 & n. 6, 71 L.Ed.2d 816 (1982) (Brennan, J., dissenting) (quotations and citations omitted). It is not, therefore, automatically subject to the rules of either civil or criminal procedure. Id. at 166-68 n. 15, 102 S.Ct. at 1593-94 n. 15. (opinion of the Court); Sassoon v. United States, 549 F.2d 983, 984 (5th Cir.1977), Compare Schiebelhut v. United States, 318 F.2d 785 (6th Cir.1963) (Fed.R.Civ.P. 33 held applicable to section 2255 proceedings) with Sullivan v. United States, 198 F.Supp. 624 (S.D.N.Y.1961) (Fed.R.Civ.P. 33 does not apply to section 2255 proceedings). See also Schlanger v. Seamans, 401 U.S. 487, 490 n. 4, 91 S.Ct. 995, 997 n. 4, 28 L.Ed.2d 251 (1971) (rules of civil procedure do not automatically apply in section 2254 cases); Harris v. Nelson, 394 U.S. at 298, 89 S.Ct. at 1090 (same); Dillard v. Blackburn, 780 F.2d 509, 514 (5th Cir.1986).
Rule 12 of the rules governing habeas corpus proceedings under section 2255 provides that “[i]f no procedure is specifically prescribed by these rules, the district court [considering a motion under § 2255] may proceed in any lawful manner not inconsistent with these rules, or any applicable statute, and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules.” 28 U.S.C. § 2255 Rule 12 (emphasis added). The Supreme Court has interpreted this rule, and the Advisory Committee Note in reference thereto, to mean that in considering a section 2255 motion, a district court may apply a rule of civil or criminal procedure so long as the application of such a rule would not be “inconsistent or inequitable in the overall framework” of habeas corpus. United States v. Frady, 456 U.S. at 167-68 n. 15, 102 S.Ct. at 1594 n. 15.
In my view, the imposition of sanctions under Fed.R.Civ.P. 11 upon a defendant or his counsel in the context of a section 2255 proceeding would be inconsistent with the *659purpose and reality of habeas corpus relief. The habeas corpus opportunity, being the last procedural device available to a criminal defendant asserting a claim to liberty, should not be lost to one who presses his claim even against the weight of authority. Indeed, given the fact that the overwhelming bulk of habeas motions are denied, it cannot be doubted that many could be deemed “frivolous.” I cannot imagine a more effective way of chilling putative counsel in habeas cases than the assessment of substantial fees for cases ultimately determined to be without merit.1 And yet how many of our most significant decisions resulted from intrepid and imaginative counsel laboring against precedent?
It is not that district courts are helpless. They can and should utilize procedures available under the habeas rules for dismissing patently frivolous habeas motions in summary fashion. E.g. 28 U.S.C. § 2255 Rule 4(b) (“If it plainly appears from the face of the motion, and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief ... the judge shall make an order for its summary dismissal); id. Rule 8(a) (“If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates.”); see also 28 U.S.C. § 2254 Rule 4.
These considerations seem to me compelling. I am, therefore, not surprised that I have found no case in which a federal court has considered, let alone approved, the use of Civil Rule 11 sanctions in the context of habeas proceedings. I am most reluctant to embark upon that apparently unprecedented course of action.
Finally, although recognizing that Quin’s threatened deportation, stemming directly from his criminal conviction, is of sufficient collateral effect to warrant habeas jurisdiction, the court suggests that sanctions may be imposed because he was not “pursuing traditional habeas relief.” I disagree. If the collateral effects are sufficiently serious to support continuing habeas jurisdiction, then the threat to liberty is of sufficient moment that we ought not to impose sanctions on even frivolous attempts to preserve that liberty.
. I can conceive of some situations, however, where the imposition of fee sanctions against counsel may not have such a detrimental, chilling effect. Two examples come to mind. One would be a habeas proceeding in which defense counsel intentionally falsified facts. Another would be a situation where counsel repeatedly filed identical habeas motions after a district court had decided the merits of the underlying issue against the petitioner. In these situations, the imposition of Rule 11 sanctions against counsel would not be inconsistent with the purposes underlying the remedy of habeas corpus.