Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Kinser, JJ., and Poff, Senior Justice 

DAVID P. CURO, ADULT 

PROBATION OFFICER 

v. Record No. 962366 OPINION BY JUSTICE CYNTHIA D. KINSER 

 October 3l, 1997 

HELIANTHE DENT CINDY BECKER 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Thomas D. Horne, Judge 

 In this appeal, the sole issue is whether the circuit 

court erred by awarding Helianthe Dent Cindy Becker a Writ of 

Habeas Corpus on the basis that Becker was denied effective 

assistance of counsel. Because we conclude that the attorney's 

representation was not deficient, we will reverse the judgment 

of the circuit court. 

 In March l993, a jury convicted Becker of arson, and on 

September 27, l993, the trial court sentenced her to two years 

of incarceration, suspended, and probation. After exhausting 

the direct appeal process, Becker filed a Petition for Writ of 

Habeas Corpus and asserted ineffective assistance of counsel 

based on numerous alleged deficiencies. The circuit court1

held a plenary hearing on August 2l, l996, and issued its 

decision in a letter memorandum dated September 3, l996. The 

court concluded that Becker's trial counsel had failed to 

conduct both a meaningful review of the underlying data relied 

upon by the forensic expert and an effective cross-examination 

of the expert. Because of these errors, the court found that 

 

 1 The same judge presided at Becker's original trial for 

arson and at the habeas hearing. 
 2 

the attorney's representation of Becker fell below the standard 

for reasonably effective assistance of counsel, and that, but 

for the errors, the outcome of the trial would have been 

different. Specifically, the court stated: 

 In this circumstantial evidence case, in which the 

testimony of the expert was critical to the 

Commonwealth's proof, a failure to fully examine both 

the conclusions and the basis for the conclusions of 

such expert not only is unreasonable but likely to 

have affected the ultimate outcome of the case. 

In an order entered on September 23, l996, the court vacated 

Becker's arson conviction and awarded her a new trial. In a 

separate order, it denied David P. Curo's2

 Motion for 

Reconsideration.3

 I. 

 "One attacking a judgment of conviction in a habeas corpus 

proceeding has the burden of proving by a preponderance of 

evidence the allegations contained in [the] petition." Nolan 

v. Peyton, 208 Va. l09, ll2, 155 S.E.2d 318, 321 (1967). 

Because entitlement to habeas relief is a mixed question of law 

and fact, the circuit court's findings and conclusions are not 

binding upon this Court, but are subject to review to determine 

whether the circuit court correctly applied the law to the 

 

 2 Throughout this proceeding, appellant's name has been 

spelled "Curo" and "Curro." We are using the spelling that 

appears in our order awarding the appeal. 

 3 The circuit court found no merit in Becker's other 

allegations in her Petition for Writ of Habeas Corpus. Becker 

did not assign cross-error to that finding. See Rule 5:9 and 

Rule 5:l7(c). 
 3 

facts. Williams v. Warden of Mecklenburg Correctional Ctr., 

254 Va. l6, 24, 487 S.E. 2d l94, l98 (1997). We hold that it 

did not. 

 II. 

 To understand the significance of the evidence at the 

habeas corpus hearing, we must first review the evidence 

presented at Becker's trial. Becker testified that on the 

morning of April 30, l992, she had planned to meet with her 

attorney to prevent an impending foreclosure on her farm. She 

had called to prearrange a taxi the previous evening, but when 

the taxi arrived that morning at the appointed time, Becker was 

not ready to leave. She asked the taxi driver to return a 

little later. After the taxi left, Becker walked to the end of 

the driveway to close the gate and also to gather some bark to 

put on a fire in the fireplace in her den that she had ignited 

earlier with fire starter logs. She then ate her breakfast and 

went to the barn, located behind her house, to get some tools 

she had promised to give to another individual. 

 Becker testified that, while in the barn, she heard a 

noise and smelled "something like lacquer." Upon leaving the 

barn, Becker discovered that her house was on fire. By this 

time, the taxi driver had returned, and the taxi was parked in 

Becker's driveway. Both Becker and the taxi driver saw smoke 

coming out a door and some windows. Becker testified that she 

went to the door and opened it, but she was not certain whether 
 4 

 

she actually went inside. Since Becker did not have a 

telephone, the taxi driver took her to a neighbor's house to 

call for help. When she returned to her home, flames were 

shooting out the windows. Becker tried to enter the house, but 

people at the scene prevented her from going in. Later, Becker 

went to a hospital by ambulance. 

 Pat Brandenburg, a lieutenant with the Loudoun County Fire 

Marshall's Office, investigated the fire at Becker's home to 

determine the cause and the origin of the fire. He concluded 

that there were multiple points of origin, that an incendiary 

means caused the fire, and that the fire was the result of 

arson. During his investigation, he found boxes of Becker's 

personal items in the barn wrapped in newspaper bearing the 

same date as that of the fire.4

 Brandenburg also collected 

several items of evidence that he submitted to the Commonwealth 

of Virginia, Division of Forensic Science, for analysis. The 

items included debris from the fire scene, a piece of "control 

wood" from the flooring material, liquid found in a gasoline 

can outside Becker's house, a tan skirt found inside the barn, 

a yellow shirt that Becker wore on the day of the fire, blue 

jeans, and a pair of shoes.5

 

 4 Becker testified that she had been packing items the night 

before the fire. The newspaper was available on the afternoon 

prior to its actual date. 

 5 Brandenburg did not personally collect the tan skirt, 

yellow shirt, blue jeans, or shoes; he received them from 

Investigator Merchant of the Loudoun County Sheriff's Office. 
 5 

 

 At trial, Eileen A. Davis, a forensic scientist with the 

Commonwealth of Virginia, Division of Forensic Science, 

testified regarding the results of the analyses on these items. 

 Using a gas chromatograph, Davis concluded that the liquid 

found in the gasoline can was a mixture of petroleum 

distillates of the gasoline and fuel oil types. Likewise, some 

of the debris samples from the scene and the yellow shirt 

contained the same mixture.6

 She found no difference in the 

nature of the petroleum mix on these items but acknowledged 

that she could neither identify the specific type of commercial 

gasoline nor state that the fuel oil on the yellow shirt was 

the same type as that found on the debris. Finally, Davis 

acknowledged some starter logs contain fuel oil distillates. 

 At the subsequent evidentiary hearing on her habeas 

petition, Becker's claim of ineffective assistance of counsel 

focused on the forensic evidence. She offered evidence from an 

analytical chemist, Keith Flohr, regarding the chromatographic 

charts that Davis' testing produced. Flohr concluded that the 

raw data on the charts were reliable and the results of 

appropriate testing.7

 He agreed with Davis' conclusion that 

 6 Davis found no petroleum distillates on the blue jeans, 

tan skirt, or piece of control wood. On the shoes, she found 

characteristics of a petroleum distillate of the gasoline type 

but could not make a more definitive determination. 

 7 Flohr did not repeat any testing of the items but reached 

all his conclusions based upon the chromatographic charts 

prepared by the Division of Forensic Science. 
 6 

 

the blue jeans did not contain any appreciable amount of 

petroleum distillate.8

 Flohr's most critical conclusion, based 

on his interpretations of the tracings on the chromatographic 

charts, was that the petroleum distillate found on the yellow 

shirt came from exposure to smoke and not from exposure to 

gasoline or fuel vapor. 

 Davis also testified at the evidentiary hearing on the 

habeas petition and did not agree with Flohr's analysis. She 

stated that "you cannot tell whether it was a vapor, whether it 

was a liquid, whether it was splashed, whether it was preexisting, that there is no way to tell, looking at the 

chromatograms, to make that determin[ation]." 

 Becker's trial attorney recognized that the prosecution's 

most compelling evidence directly linking Becker to the fire 

was the substance on the yellow shirt. However, Becker's trial 

attorney was satisfied with Davis' admission that she could not 

determine if the distillate on the shirt was the same type as 

that on the debris. Becker's trial attorney believed that 

Davis' admission coupled with the statement that some fire 

starter logs contain fuel oil distillates corroborated the 

defense theory that the distillate on the yellow shirt came 

 8 According to Flohr, the absence of distillate on the blue 

jeans indicated that Becker did not pour the accelerant in the 

house. First, he explained that gasoline has a low surface 

tension and thus splashes easily. Second, when one comes in 

contact with the gasoline, most of it, but not all, will 

evaporate. 
 7 

from the logs. Because she believed this defense was viable, 

Becker's trial attorney did not employ an expert to check 

Davis' work, obtain the chromatographic charts, or ask Davis 

whether the distillate on the yellow shirt might have come from 

smoke. 

 III. 

 "The right to counsel which is guaranteed by the Sixth 

Amendment to the Federal Constitution and made applicable to 

the States through the Fourteenth Amendment includes the right 

to effective assistance of counsel." Virginia Dep't. of 

Corrections v. Clark, 227 Va. 525, 533, 3l8 S.E.2d 399, 403 

(l984). "The benchmark for judging any claim of 

ineffectiveness must be whether counsel's conduct so undermined 

the proper functioning of the adversarial process that the 

trial cannot be relied on as having produced a just result." 

Strickland v. Washington, 466 U.S. 668, 686 (l984). "In other 

words, the accused is entitled to counsel who is a reasonably 

competent attorney and to advice that is within the range of 

competence demanded of attorneys in criminal cases." Murray v. 

Griffith, 243 Va. 384, 388, 4l6 S.E.2d 219, 221 (l992) (citing 

Strickland, 466 U.S. at 687). 

 In Strickland v. Washington, the Supreme Court of the 

United States enunciated a two-part test for judging claims of 

ineffective assistance of counsel in a collateral attack on the 

conviction. "First, the defendant must show . . . that counsel 
 8 

made errors so serious that counsel was not functioning as the 

`counsel' guaranteed the defendant by the Sixth Amendment." 

Strickland, 466 U.S. at 687. The second element of the test 

requires the defendant to show "that the deficient performance 

prejudiced the defense." Id. Unless the defendant satisfies 

both elements, the claim of ineffective assistance will fail. 

Id.

 In applying this two-part test, the Supreme Court 

cautioned against second-guessing counsel's representation 

through hindsight. Instead, the Court stated that "a court 

deciding an actual ineffectiveness claim must judge the 

reasonableness of counsel's challenged conduct on the facts of 

the particular case, viewed as of the time of counsel's 

conduct." Id. at 690. Furthermore, the Court recognized that 

"[t]he reasonableness of counsel's actions may be determined or 

substantially influenced by the defendant's own statements or 

actions." Id. at 691. 

 This last admonition is determinative of the present case. 

 Becker's theory of ineffective assistance of counsel rests on 

the trial attorney's failure to develop the forensic evidence. 

 Becker claims that her attorney erred by not obtaining the 

chromatographic charts and procuring expert testimony such as 

that offered at the habeas hearing by Flohr to establish that 

the distillate on the yellow shirt might have come from smoke 

rather than from gasoline or fuel vapor. Becker also contends 
 9 

that her attorney's failure to understand the methodology and 

data led to an ineffective cross-examination of the expert. 

 The above theory erroneously presupposes that Becker had 

not previously offered any explanation for the presence of the 

distillate on the yellow shirt. However, Becker had told her 

attorney that she had used fire starter logs that morning, and 

she attributed the presence of distillate on her shirt to her 

handling of those logs. Upon investigating this explanation, 

Becker's attorney learned three important things from Davis: 

(1) that some fire starter logs contain fuel oil distillates; 

(2) that Davis could not distinguish between specific types of 

fuel oil; and (3) that Davis would admit that she could not 

determine whether the petroleum distillate found on debris 

taken from the fire scene and that found on the yellow shirt 

were the same type. 

 Despite this defense premised on information from Becker, 

the circuit court concluded that Becker's attorney erred in the 

manner in which she developed the forensic evidence and crossexamined Davis. That judgment, however, runs afoul of the 

instructions in Strickland. "[W]hen the facts that support a 

certain potential line of defense are generally known to 

counsel because of what the defendant has said, the need for 

further investigation may be considerably diminished or 

eliminated altogether." Strickland, 466 U.S. at 69l. Because 

the attorney developed a defense based on Becker's version of 
 10 

the events, we cannot now say that the representation "fell 

below an objective standard of reasonableness" just because the 

attorney did not also investigate alternative defenses. Id. at 

688. 

 For these reasons, we conclude that Becker was not denied 

the effective assistance of counsel guaranteed by the Sixth 

Amendment. Since Becker has not shown that her trial 

attorney's performance was deficient, we do not need to address 

the prejudice element of the Strickland test. We hold, 

therefore, that the circuit court erred in granting the Writ of 

Habeas Corpus. Accordingly, the judgment of the circuit court 

will be reversed and vacated, and final judgment will be 

entered here dismissing Becker's Petition for Writ of Habeas 

Corpus. 

Reversed and final judgment.