                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-11907                 OCT 27, 2010
                                   Non-Argument Calendar             JOHN LEY
                                                                       CLERK
                                 ________________________

                             D.C. Docket No. 1:09-cv-21504-MGC

TELMO HURTADO HURTADO,

lllllllllllllllllllll                                              Petitioner-Appellant,

                                            versus

U.S. ATTORNEY GENERAL,
Eric Holder,
U.S. SECRETARY OF STATE,
Hillary Clinton,

lllllllllllllllllllll                                           Respondents-Appellees.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                      (October 27, 2010)

Before DUBINA, Chief Judge, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
       Petitioner Telmo Hurtado Hurtado appeals the district court’s denial of

habeas corpus relief under 28 U.S.C. § 2241 and its earlier issuance of a

Certificate of Extraditability pursuant to a valid treaty with Peru. See Extradition

Treaty with Peru, U.S.-Peru, July 26, 2001, S. Treaty Doc. No. 107-6 (“Extradition

Treaty”).

       On appeal, Hurtado first argues that the implicit language and legislative

intent of the applicable treaty barred the extradition of an individual, like him, who

was previously acquitted of similar charges in the Requesting State, in this case

Peru. Second, he argues that Article 14(7) of the International Covenant of Civil

and Political Rights (“ICCPR”) bars his extradition on double jeopardy grounds.

Third, relying on Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir. 1960), Hurtado

argues that extraditing him to Peru would be fundamentally unfair, because

Peruvian authorities previously acquitted him of similar charges to the ones

charged in the United States.1

                                               I.




       1
          We note that Hurtado does not challenge the district court’s finding that there was
probable cause to establish that he committed the crimes charged and that he could be extradited
for the crimes charged. Consequently, these claims are abandoned. Allstate Ins. Co. v. Swann,
27 F.3d 1539, 1542 (11th Cir. 1994) (claims not raised in the initial brief on appeal are
abandoned).

                                               2
      “On review of a denial of a habeas petition regarding the issuance of a

certification of extraditability, we review [the district court’s] factual findings for

clear error and questions of law de novo.” Noriega v. Pastrana, 564 F.3d 1290,

1294 (11th Cir. 2009), cert. denied, 130 S. Ct. 1002 (2010). The availability of

habeas corpus relief under § 2241 is a question of law that we review de novo.

Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005).

      Generally, “[t]here is no right to appeal extradition certification

determinations, and collateral review of an extradition determination by means of

a petition for writ of habeas corpus [under § 2241] is generally limited to

determining whether the magistrate had jurisdiction, whether the offense charged

is within the treaty and whether there was any evidence warranting the finding that

there was reasonable ground to believe the accused guilty.” Noriega, 564 F.3d at

1295 (internal quotation marks, ellipses, and citation omitted). However, “[t]he

issue of whether the treaty of extradition has no force because another treaty or

law prevents its operation” is a fundamental one that is within the class of

reviewable challenges to extradition. Id. (internal quotation marks omitted); see

also Yapp v. Reno, 26 F.3d 1562, 1565-66 (11th Cir. 1994) (concluding that the

court was still required to interpret a provision of the applicable extradition treaty




                                           3
regardless of the limited scope of habeas corpus review in extradition

proceedings).

      “When interpreting a treaty, we begin with the text of the treaty and the

context in which the written words are used.” Eastern Airlines, Inc. v. Floyd, 499

U.S. 530, 534, 111 S. Ct. 1489, 1993, 113 L. Ed. 2d 569 (1991). If the language

of the treaty is clear and unambiguous, our analysis ends there, and we apply the

words of the treaty as written. United States v. Duarte-Acero, 208 F.3d 1281,

1285 (11th Cir. 2000) (“Duarte-Acero I”); see also Chan v. Korean Air Lines,

Ltd., 490 U.S. 122, 135, 109 S. Ct. 1676, 1684, 104 L. Ed. 2d 113 (1989) (“[T]o

alter, amend, or add to any treaty, by inserting any clause, whether small or great,

important or trivial, would be on our part an usurpation of power, and not an

exercise of judicial functions. It would be to make, and not to construe a treaty.”).

      “[A]lthough treaties are to be liberally construed, [t]his does not mean . . .

that treaty provisions are construed broadly. Rather, this ‘liberal’ approach to

treaty interpretation merely reflects . . . the willingness of courts, when

interpreting difficult or ambiguous treaty provisions, to look beyond the written

words to the history of the treaty, the negotiations, and the practical construction

adopted by the parties.” Duarte-Acero I, 208 F.3d at 1285 (internal quotation

marks omitted) (emphasis added). A well-established canon of statutory

                                           4
construction is that the inclusion of a term in one section of a statute implies the

intentional exclusion of other terms. See, e.g., Gozlon-Peretz v. United States, 498

U.S. 395, 403-404, 111 S. Ct. 840, 846-47, 112 L. Ed. 2d 919 (1991); United

States v. Koonce, 991 F.2d 693, 698 (11th Cir. 1993).

      Article IV of the Extradition Treaty sets forth several specific bases for

denying an extradition request, including the mandatory denial of extradition if:

      the person sought has been convicted or acquitted in the Requested
      State for the offense for which extradition is requested. However,
      extradition shall not be precluded by the fact that the authorities in the
      Requested States have decided not to prosecute the person sought for
      the same acts for which extradition is requested, or to discontinue any
      criminal proceedings that have been instituted against the person
      sought for those acts.

Extradition Treaty, art. IV, § 1(a).

      Here, as noted by the parties, the Extradition Treaty does not explicitly

address the situation where an individual, such as Hurtado, has been acquitted in

the Requesting State – Peru, in this case. However, the language of the

Extradition Treaty is clear and unambiguous, and the express inclusion of the bar

to an individual’s extradition where he was acquitted in the Requested State

implies the exclusion of other situations, such as when the individual was

acquitted in the Requesting State or in a third state. There is no need to look

beyond the written words of the text, as Hurtado suggests, because the Extradition

                                           5
Treaty’s language is not ambiguous. As a result, we conclude that the Extradition

Treaty does not bar Hurtado’s extradition to Peru.



                                                  II.

      Article 14(7) of the ICCPR states that “[n]o one shall be liable to be tried or

punished again for an offence for which he has already been finally convicted or

acquitted in accordance with the law and penal procedure of each country.”2

ICCPR, Dec. 9, 1966, 999 U.N.T.S. 171 (ratified June 8, 1992).

      We have previously noted that Article 14(7) bars the successive prosecution

of an individual in the same country. Duarte-Acero I, 208 F.3d at 1286-87

(holding that the provision does not block the prosecution of an individual in

federal courts after he was convicted in a foreign country for the same conduct

alleged in the federal indictment). However, we also noted that the plain language

of the ICCPR indicates that its provisions govern the relationship between a State

and the individuals within the State’s territory, not the relationship between two

sovereign States. Id. at 1286.

      Furthermore, the ICCPR does not create judicially-enforceable individual

rights, because the treaty is not self-executing and has not been given effect by


      2
          British spelling is used in the original, and retained here.

                                                   6
congressional legislation. Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35, 124 S.

Ct. 2739, 2767, 159 L. Ed. 2d 718 (2004) (stating that “the United States ratified

the [ICCPR] on the express understanding that it was not self-executing and so did

not itself create obligations enforceable in the federal courts”); United States v.

Duarte-Acero, 296 F.3d 1277, 1283 (11th Cir. 2002) (“Duarte-Acero II”) (noting

that Congress had not passed legislation implementing the ICCPR). “Therefore,

the ICCPR is not binding on federal courts.” Duarte-Acero II, 296 F.3d at 1283.

      In the present case, Hurtado may use Article 14(7) as a defense before

Peruvian courts to prevent his prosecution there, as this provision governs his

relationship to that state. However, Article 14(7) is not a basis on which to bar his

extradition, because this provision has no effect in federal courts.

                                         III.

      We have recognized the rule of non-inquiry, “which precludes extradition

magistrates from assessing the investigative, judicial, and penal systems of foreign

nations when reviewing an extradition request.” Martin v. Warden, Atlanta Pen,

993 F.2d 824, 829 (11th Cir. 1993); see also United States v. Kin-Hong, 110 F.3d

103, 110 (1st Cir. 1997) (stating that the non-inquiry rule precludes a court from

investigating the fairness of a requesting state’s justice system). We have also

recognized that the United States may not force treaty partners to adhere to

                                           7
guarantees afforded by the United States Constitution. Martin, 993 F.2d at 830.

In certifying an extradition order, a magistrate is limited to determining whether

there is sufficient evidence to support a charge under the applicable extradition

treaty and does not have the authority to consider other factors, such as

humanitarian considerations or foreign relations, in issuing a certificate of

extraditability. Id. at 829-30 & n.10 (noting that because after extradition is

uniquely an executive function only the Secretary of State has the authority to

consider such factors, not the magistrate).

      We have expressly rejected the suggestion in Gallina, that the rule of non-

inquiry should be displaced when “a defendant faces procedures in a foreign

country ‘antipathetic to a federal court’s sense of decency.’” Id. at 830 n.10

(quoting Gallina, 278 F.2d at 79) (also noting that the Second Circuit has more

recently distanced itself from the language in Gallina, and that many other courts

have strictly adhered to the rule of non-inquiry). Additionally, we have explicitly

held that “judicial intervention in extradition proceedings based on humanitarian

considerations is inappropriate.” Id. (citing Escobedo v. United States, 623 F.2d

1098, 1107 (5th Cir. 1980)).

      Here, because of the limited scope of a magistrate’s review concerning

certification of an extradition request, the rule of non-inquiry prevented the

                                          8
magistrate from inquiring into the fairness of Peru’s criminal justice system or

denying the certificate based on fundamental fairness. Importantly, we have

expressly rejected the Gallina suggestion upon which Hurtado relies.

      For the aforementioned reasons, we affirm the district court’s judgment

denying habeas corpus relief.

      AFFIRMED.




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