NOT PRECEDENTIAL


                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                               No. 08-4305
                               __________

                           JOHN E. DU PONT,
                                      Appellant

                                    v.

PAUL STOWITZKY, SUPERINTENDENT OF SRCF MERCER; THE DISTRICT
  ATTORNEY OF THE COUNTY OF DELAWARE, PENNSYLVANIA; THE
      ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA


                               __________

              On Appeal from the United States District Court
                 from the Eastern District of Pennsylvania
                           (Civ. No. 06-cv-00147)
                   District Judge: Hon. Petrese B. Tucker
                                  ________

               Submitted Under Third Circuit L.A.R. 34.1(a)
                            March 8, 2010
                             ___________

   Before: McKEE, Chief Judge, BARRY and GREENBERG, Circuit Judges

                   (Opinion Filed: November 18, 2010)


                               OPINION
                              ___________
McKEE, Chief Judge:

       John du Pont appeals the district court’s denial of the habeas corpus petition he

filed pursuant to 28 U.S.C. §§ 2241(c)(3) and 2254. Du Pont argues that his trial counsel

failed to properly investigate use of a prescription drug and its effect on du Pont’s mental

state, and that this failure violated du Pont’s Sixth Amendment right to effective

assistance of counsel. For the reasons set forth below, we will affirm the district court’s

order denying habeas relief.

                                              I. 1

       In 1997, John du Pont was convicted of murdering David Schultz. The sole issue

at trial was whether du Pont was mentally ill but guilty of third degree murder, or

whether he was not guilty by reason of insanity. The judge properly instructed the jury

that a defendant who is “sick rather than bad” is legally insane, and a defendant who is

“both sick and bad” is guilty but mentally ill. 2 During the trial, the Commonwealth

introduced evidence of du Pont’s cocaine use to support a theory of drug induced

psychosis. However, du Pont’s medical experts testified that he suffered from paranoid

schizophrenia. The jury found du Pont mentally ill but guilty of third degree murder

pursuant to 18 PA. CONS. STAT. § 314(c)(1).

       After denial of relief on direct appeal, du Pont filed a Post Conviction Relief Act

(“PCRA”) petition in state court in which he challenged the effectiveness of his trial


1
  Because we write solely for the benefit of the parties, we recite only the facts essential
to our decision.
2
  Du Pont does not challenge the accuracy of the jury instruction.
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attorneys. Du Pont alleged that because his trial counsel knew that he was taking

scopolamine - a powerful prescription drug - counsel’s failure to investigate his use of

this drug as a possible defense amounted to ineffective assistance of counsel.

       The state trial court dismissed du Pont’s petition without a hearing, the Superior

Court of Pennsylvania affirmed, and the Pennsylvania Supreme Court denied a Petition

for Allowance of Appeal. Du Pont then filed a Petition for Writ of Habeas Corpus that

included the ineffective assistance of counsel claim raised in his PCRA petition. The

district court denied the petition without a hearing. Thereafter, we granted a certificate of

appealability limited to the issue of whether defense counsel’s failure to introduce

evidence of du Pont’s alleged scopolamine use constituted ineffective assistance of

counsel.

                                             II.

       We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).

Because the district court did not hold an evidentiary hearing, but relied on the state court

record for its judgment, our review is plenary. Marshall v. Hendricks, 

, 50

(3d Cir. 2002).

       Pursuant to the limitations imposed by the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), we cannot grant a writ of habeas corpus where the state court

reached the merits of the petitioner’s habeas claim unless the state court adjudication

“was contrary to, or involved an unreasonable application of, clearly established

[Supreme Court precedent]” or “resulted in a decision that was based on an unreasonable



                                              3
determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. 2254(d).

                                            III.

       In order to establish ineffective assistance of counsel, du Pont must show that

counsel’s performance was deficient, and that he was prejudiced by that deficient

performance. Strickland v. Washington, 

, 687 (1984). Establishing prejudice

requires showing that there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” 

       The Superior Court of Pennsylvania affirmed the trial court’s denial of post

conviction relief because du Pont could not show that he was prejudiced by counsel’s

actions. Commonwealth v. duPont, 

, 536-37 (Pa. Super. Ct. 2004). Because

we find that the state court’s judgment was not an unreasonable application of clearly

established federal law within the meaning of the AEDPA, we do not need to consider

whether trial counsel’s performance was deficient.

       Du Pont argues that evidence of his scopolamine use should have been introduced

to rebut the prosecution’s contention that he was “both bad and sick.” Du Pont posits that

evidence that his mental illness was exacerbated by a prescription drug rather than

cocaine (as the prosecution argued) could have potentially influenced the jury to find that

he was “sick rather than bad” and therefore conclude that he was not guilty by reason of

insanity. The argument is meritless because under Pennsylvania law even such proof of

“intoxication” would have been unavailing in du Pont’s case, as he was charged with

murder. See 18 PA. CONS. STAT. § 308 (evidence of voluntary intoxication cannot reduce

                                              4
criminal culpability below the level of third degree murder). Thus, trial counsel’s failure

to introduce evidence of scopolamine use could not have prejudiced du Pont. See

Commonwealth v. Brode, 

, 1255-56 (Pa. 1989).

       Accordingly, pursuant to 28 U.S.C. § 2254(d), du Pont has not shown that he is

entitled to relief.

                                            IV.

       For the foregoing reasons, the district court’s denial of du Pont’s habeas petition

will be affirmed.




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