1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 10

- 2 878

_____________ KENNETH E. FINK ,

Appellant

v. PERRY PEHLPS, Warden, ATTORNEY GENERAL OF THE STATE OF DELAWARE

_____________ On Appeal from the United States District Court

For the District of Delaware (D.C. No. 0 6

- cv - 00 181 ) District Judge: Honorable Gregory M. Sleet

_____________ Argued on October 3, 2011
BEFORE: MCKEE, Chief Judge , and FUENTES, COWEN , Circuit Judges

(Opinion Filed: October 18, 2011 )

Gwen M. Schoenfeld , Esq. (ARGUED) Law Office of Gwen M. Schoenfeld, L.L.C. 147 Ridgewood Avenue Glen Ridge, New Jersey 07028 Counsel for Appellant Eliza beth R. McFarlan , Esq. ( ARGUED) Deputy Attorney General Delaware Department of Justice State Office Building2

820 N. French Street Wilmington, DE 19801 Counsel for Appellees

OPINION OF THE COURT

_____________ FUENTES, Circuit Judge

. Kenneth Fink was ind icted on 15 counts of dealing in child pornography (Del. Code Ann. tit. 11, § 1109(4) (1998)) and 15 counts of possessing child pornography (Del. Code Ann. tit. 11, § 1111 (1998)). Prior to trial, he twice moved to suppress the child pornography . First, he claimed that the search of his computers and electronic storage devices was improperly executed as a general search. He argued that the investigator

— who had obtained a warrant to search for evidence of then

- attorney Fink’s alleged theft of
client fund s

— lacked the requisite knowledge of computers to properly target his search to that end

. T he trial court denied Fink’s motion. In a s econd suppression motion , Fink argued that the initial search warrant lacked sufficient particularity and was overbroad

a nd that there was no probable cause to search his home. This motion was also denied. A jury convicted Fink of all counts set forth in the indictment. After exhausting his state court appeals , and failing to obtain post

- conviction relief, Fink filed a pe tition for federal habeas relief. The District Court denied his claims. We will affirm. 1
I.

1 The District Court had jurisdiction pursuant to 28 U.S.C. § 2254 , and we have jurisdiction pursuant to 28 U.S.C. § § 1291 and 2253

.3

We write only for the parties and assume their familiarity with the factual and procedural history of this case , which are carefully set forth in the District C ourt’s opinion

. See Fink v. Phelps , No. 06

- 181 , 2009 U.S. Dist. LEXIS 9132 (D. Del

. Feb. 4 , 2009). Fink first argues that his appellate counsel was ineffective in failing to appeal the denial of his first suppression motion. In his detailed and tho ughtful opinion, Judge Sleet explained h is reasons for denying this claim

. See id. Since we can add little to the District Court’s reasoning, we will affirm the order denying habeas relief substantially for the reasons set forth in the court’s opinion

. I I . Fink next argues that his convictions on 30 separate counts of possessing and dealing in child pornography amounted to multiple prosecutions for the same offense in violation of the Double Jeopardy Clause. The District Court correctly noticed that, wh en it considered this assertion, the Delaware Supreme Court inadvertently analyzed newer versions of the state’s child pornography statutes that were not in effect when Fink was indicted. After receiving supplemental briefing from the parties, District Ju dge Sleet nevertheless denied Fink’s Double Jeopardy claim, reasoning that both versions of the

statu t es punish possession of and dealing in child pornography on a per

- image, rather than per

- transaction, basis. Appellees now request that we certify to th e Delaware Supreme Court the question of how the pre - July 2000 version s of the child pornography statute s should be interpreted. They reason that this is a purely state law issue that is best decided by the state court.4

However, like Judge Sleet, we do n ot believe that certification is necessary in this case. First, it is highly unlikely that the question of how to interpret the pre

- July 2000 versions of the statu t es will ever present itself again. Second, the July 2000 amendments did not change the und erlying substantive law. Employing the same method of statutory analysis as the Delaware Supreme Court did when it analyzed the newer statutes , Judge Sleet correctly concluded that the older versions of the statutes unambiguously prosecuted on a
per - image basis. Therefore, we will affirm the judgment for the same reasons set forth in Judge Sleet’s opinion

. See Fink v. Phelps , No. 06

- 181 , 20 10 U.S. Dist. LEXIS 51777 (D. Del

. May 24, 2010 ).