NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                    No. 10-2878
                                   _____________

                                 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. 06-cv-00181)
                    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

Elizabeth R. McFarlan, Esq. (ARGUED)
Deputy Attorney General
Delaware Department of Justice
State Office Building

                                           1
820 N. French Street
Wilmington, DE 19801

Counsel for Appellees


                                OPINION OF THE COURT
                                    _____________


FUENTES, Circuit Judge.

       Kenneth Fink was indicted 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 funds—lacked the requisite knowledge of computers to properly target his search

to that end. The trial court denied Fink’s motion. In a second suppression motion, Fink

argued that the initial search warrant lacked sufficient particularity and was overbroad

and 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 petition 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.

                                              2
         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 Court’s

opinion. See Fink v. Phelps, No. 06-181, 

(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 thoughtful opinion, Judge Sleet

explained his reasons for denying this claim. See 

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.

                                                    II.

         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, when

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 Judge Sleet

nevertheless denied Fink’s Double Jeopardy claim, reasoning that both versions of the

statutes punish possession of and dealing in child pornography on a per-image, rather

than per-transaction, basis.

         Appellees now request that we certify to the Delaware Supreme Court the question

of how the pre-July 2000 versions of the child pornography statutes should be interpreted.

They reason that this is a purely state law issue that is best decided by the state court.

                                                3
However, like Judge Sleet, we do not 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 statutes will ever present itself again. Second, the July 2000 amendments did not

change the underlying 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, 

(D.

Del. May 24, 2010).




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