Luther Cain v. Howard Peters & Roland Burris, 972 F.2d 748 (7th Cir. 1992). · Go Syfert
Luther Cain v. Howard Peters & Roland Burris, 972 F.2d 748 (7th Cir. 1992). Cases Citing This Book View Copy Cite
105 citation events (66 in the last 25 years) across 24 distinct courts.
Strongest positive: People v. Pettaway (illappct, 2026-02-13)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (rule) People v. Pettaway
Ill. App. Ct. · 2026 · confidence medium
“A defendant must explicitly inform the trial court he wants to proceed pro se because ‘anything else is an effort to sandbag the court and the opposition, to seek an acquittal with an ace up the sleeve to be whipped out in the event of conviction.’ ” Id. (quoting Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992)); see People v. Mayo, 198 Ill. 2d 530 , - 29 - 538 (2002) (stating that an “unequivocal” request to waive counsel is necessary to “(1) prevent the defendant from appealing the denial of his right to self-representation or the denial of his right to counsel, and (2) preve…
cited Cited as authority (rule) Wakefield
S.D. Ill. · 2026 · confidence medium
“Representation by counsel and self-representation are mutually exclusive.” Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992).
discussed Cited as authority (rule) Isaaih X Ash v. State of Florida
Fla. Dist. Ct. App. · 2025 · confidence medium
See Sheppard v. State, 17 So. 3d 275, 279 (Fla. 2009) (noting that “a defendant has no Sixth Amendment right to simultaneously proceed pro se and with legal representation.”); Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992) (noting that [r]epresentation by counsel and self- representation are mutually exclusive entitlements”).
discussed Cited as authority (rule) People v. Hilliard
Ill. App. Ct. · 2022 · confidence medium
“A defendant must explicitly inform the trial court he wants to proceed pro se because ‘[a]nything else is an effort to sandbag the court and the opposition, to seek an acquittal with an ace up the sleeve to be whipped out in the event of conviction.’ ” Id. (quoting Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992)). - 11 - No. 1-20-0744 ¶ 31 Here, defendant did not “articulately and unmistakably” demand to proceed pro se at his April 16 arraignment.
discussed Cited as authority (rule) People v. Hui
Ill. App. Ct. · 2022 · confidence medium
A defendant must explicitly inform the trial court that he wishes to proceed pro se, because “ ‘[a]nything else is an effort to sandbag the court and the opposition, to seek an acquittal with an ace up the sleeve - 14 - 2022 IL App (2d) 190846 to be whipped out in the event of conviction.’ ” Id. (quoting Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992)).
cited Cited as authority (rule) INSTITUTE FOR THE INTERNATIONAL EDUCATION OF STUDENTS v. CHEN
S.D. Ind. · 2020 · confidence medium
"Representation by counsel and self-representation are mutually ex- clusive[.]" Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992).
discussed Cited as authority (rule) State v. Ely
Neb. · 2020 · confidence medium
The need for this protection arises out of the fact that the right to counsel and the right to self-representation are “mutually exclusive entitlements.” Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992).
discussed Cited as authority (rule) People v. Rainey
Ill. App. Ct. · 2020 · confidence medium
So defendants who wish to depart from that default option must say so “clear[ly] and unequivocal[ly].” Burton, 184 Ill. 2d at 22 ; Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992). ¶ 37 The requirement of clarity prevents gamesmanship.
discussed Cited as authority (rule) State v. Winston B. Eison (2×) also: Cited "see"
Wis. Ct. App. · 2020 · confidence medium
The circuit court, therefore, properly denied Eison’s postconviction motion. ¶34 For the sake of completeness, we add that even if we were to conclude that the trial court erred on the first day of trial by refusing to permit Eison to represent himself—and we do not reach such a conclusion—we would nonetheless reject Eison’s claim for relief on the ground that Eison subsequently forfeited his right to self-representation. “[A] defendant who wants to proceed unaided must be allowed to do so ‘unless the accused has acquiesced in such representation.’ The implication is clear: defe…
discussed Cited as authority (rule) Michelson v. Duncan
W.D.N.C. · 2020 · confidence medium
See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (noting there is no constitutional right to a “hybrid representation” in which defendant is represented both by himself and by counsel); Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992) (representation by counsel and self-representation are mutually exclusive entitlements in light of McKaskle).
cited Cited as authority (rule) James Freeman v. Guy Pierce
7th Cir. · 2017 · confidence medium
Cain v. Peters, 972 F.2d 748, 749 (7th Cir. 1992).
cited Cited as authority (rule) Robert D. Fletcher v. Rick Harrington
7th Cir. · 2013 · confidence medium
United States v. Oreye, 263 F.3d 669 , 672–73 (7th Cir. 2001); Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992).
cited Cited as authority (rule) Fletcher v. Harrington
7th Cir. · 2013 · confidence medium
United States v. Oreye, 263 F.3d 669, 672-73 (7th Cir.2001); Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992).
discussed Cited as authority (rule) Clarence Randolph, Jr. v. Burl Cain, Warden (2×)
5th Cir. · 2010 · confidence medium
Because the determination of whether Randolph expressly and unequivocally, or constructively, invoked his right to self-representation, requiring Faretta safeguards, was solely dependent on the particular facts and circumstances of the case, our review of that issue is to determine whether the state court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding”. 28 U.S.C. § 2254 (d)(2); see United States v. Long, 597 F.3d 720, 723-24 (5th Cir. 2010) (citing cases and analyzing various verbal exchanges between defen…
discussed Cited as authority (rule) United States v. Miles
10th Cir. · 2009 · confidence medium
See United States v. Proctor, 166 F.3d 396, 401 (1st Cir.1999); Wilson v. Walker, 204 F.3d 33, 37 (2d Cir.2000); United States v. Peppers, 302 F.3d 120, 129 (3d Cir.2002); Daniels v. Lee, 316 F.3d 477, 489 (4th Cir.2003); Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982) (en banc); United States v. Martin, 25 F.3d 293, 295 (6th Cir.1994); Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992); Hamilton v. Groose, 28 F.3d 859, 861 (8th Cir.1994); United States v. Bishop, 291 F.3d 1100, 1114 (9th Cir.2002); Raulerson v. Wainwright, 732 F.2d 803 , 808 (11th Cir.1984); United States v. Weisz, 718 F.…
discussed Cited as authority (rule) People v. Abdu
Colo. Ct. App. · 2009 · confidence medium
Stenson v. Lambert, 504 F.3d 873, 882 (9th Cir.2007); Fields v. Murray, 49 F.3d 1024, 1032 (4th Cir.1995); Hamilton v. Groose, 28 F.3d 859, 862 (8th Cir.1994); Cain v. Peters, 972 F.2d 748, 749 (7th Cir.1992).
discussed Cited as authority (rule) United States v. Chavin, Leonard
7th Cir. · 2002 · confidence medium
This court has held that hybrid representation is “dis- favored.” United States v. Kosmel, 272 F.3d 501, 506 (7th Cir. 2001); Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992); United States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988).
discussed Cited as authority (rule) United States v. Leonard Chavin and Martin Litwin
7th Cir. · 2002 · confidence medium
This court has held that hybrid representation is “disfavored.” United States v. Kosmel, 272 F.3d 501, 506 (7th Cir.2001); Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992); United States v. Oakey, 853 F.2d 551, 553 (7th Cir.1988).
discussed Cited as authority (rule) United States v. Roman Kosmel
7th Cir. · 2001 · confidence medium
In fact, this Circuit clearly disfavors any form of hybrid representation, see Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992), because “it allows a defendant to address the jury, in his capacity as counsel, without being cross-examined, in his capacity as a defendant.” United States v. Oreye, 263 F.3d 669, 672-73 (7th Cir.2001) (citing Oakey, 853 F.2d at 553 ).
discussed Cited as authority (rule) United States v. Kosmel, Roman
7th Cir. · 2001 · confidence medium
In fact, this Circuit clearly disfavors any form of hybrid representation, see Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992), because "it allows a defendant to address the jury, in his capacity as counsel, without being cross-examined, in his capacity as a defendant." United States v. Oreye, 263 F.3d 669, 672-73 (7th Cir. 2001) (citing Oakey, 853 F.2d at 553 ).
cited Cited as authority (rule) United States v. Perez
7th Cir. · 2001 · confidence medium
See Faretta, 422 U.S. at 835 , 95 S.Ct. 2525 ; Cain v. Peters, 972 F.2d 748, 749-50 (7th Cir.1992).
discussed Cited as authority (rule) Harris v. Walls
7th Cir. · 2001 · confidence medium
Because a litigant represented by counsel is not entitled to proceed on his own behalf, see United States v. Oreye, 263 F.3d 669, 671-672 (7th Cir. 2001); Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992); cf. Martinez v. Court of Appeal, 528 U.S. 152 , 120 S.Ct. 684 (2000) (no right of self-representation on appeal); we strike this brief.
cited Cited as authority (rule) United States v. James Oreye
7th Cir. · 2001 · confidence medium
This is provided the offer is clear, see Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992), but it was here.
cited Cited as authority (rule) United States v. Oreye, James
7th Cir. · 2001 · confidence medium
This is provided the offer is clear, see Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992), but it was here.
discussed Cited as authority (rule) Blue v. State (2×)
Tex. Crim. App. · 2000 · confidence medium
Cain v. Peters, 972 F.2d 748, 749-750 (7th Cir.1992), cert. denied, 507 U.S. 930 , 113 S.Ct. 1310 , 122 L.Ed.2d 698 (1993)(right to self-representation); see also Faretta v. California, 422 U.S. 806, 821 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975)("Unless the accused has acquiesced in such representation, appointing counsel to conduct his defense does not give the accused the defense guaranteed by the Constitution”) (emphasis added); Levine v. United States, 362 U.S. 610, 619 , 80 S.Ct. 1038 , 4 L.Ed.2d 989 (1960)(right to public trial). .
discussed Cited as authority (rule) United States v. Johnson, Darryl, L.
7th Cir. · 2000 · confidence medium
When as in the usual case the defendant is represented by a lawyer, the fact of representation is taken to be the defendant’s waiver of his right to represent himself, since "representation by counsel and self-representation are mutually exclusive entitlements," Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992), so that "assertion of one constitutes a de facto waiver of the other." United States v. Singleton, 107 F.3d 1091, 1096 (4th Cir. 1997).
discussed Cited as authority (rule) United States v. Darryl Lamont Johnson
7th Cir. · 2000 · confidence medium
When as in the usual case the defendant is represented by a lawyer, the fact of representation is taken to be the defendant’s waiver of his right to represent himself, since “representation by counsel and self-representation are mutually exclusive entitlements,” Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992), so that “assertion of one constitutes a de facto waiver of the other.” United States v. Singleton, 107 F.3d 1091, 1096 (4th Cir.1997).
discussed Cited as authority (rule) People v. Burton
Ill. · 1998 · confidence medium
A defendant must explicitly inform the trial court he wants to proceed pro se because “[a]nything else is an effort to sandbag the court and the opposition, to seek an acquittal with an ace up the sleeve to be whipped out in the event of conviction.” Cain v. Peters , 972 F.2d 748, 750 (7th Cir. 1992).
discussed Cited as authority (rule) People v. Burton
Ill. · 1998 · confidence medium
A defendant must explicitly inform the trial court he wants to proceed pro se because “[ajnything else is an effort to sandbag the court and the opposition, to seek an acquittal with an ace up the sleeve to be whipped out in the event of conviction.” Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992). .
cited Cited as authority (rule) United States Ex Rel. Jenkins v. Dobucki
N.D. Ill. · 1998 · confidence medium
See 28 U.S.C. § 2254 (e)(1); Cain v. Peters, 972 F.2d 748, 749-50 (7th Cir.1992); Lewis v. Huch, 964 F.2d 670, 674-75 (7th Cir.1992).
cited Cited as authority (rule) People v. Pecoraro
Ill. · 1997 · confidence medium
See also United States v. Callwood, 66 F.3d 1110, 1114 (10th Cir. 1995); Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992).
cited Cited as authority (rule) People v. Pecoraro
Ill. · 1997 · confidence medium
See also United States v. Callwood, 66 F.3d 1110, 1114 (10th Cir. 1995); Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992).
cited Cited as authority (rule) Spencer v. Ault
N.D. Iowa · 1996 · confidence medium
Fields, 49 F.3d at 1032; Cain v. Peters, 972 F.2d 748, 749 (7th Cir.1992), cert. denied, 507 U.S. 930 , 113 S.Ct. 1310 , 122 L.Ed.2d 698 (1993).
cited Cited as authority (rule) People v. Redd
Ill. · 1996 · confidence medium
Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992), citing McKaskle v. Wiggins, 465 U.S. 168, 183 , 79 L.
cited Cited as authority (rule) People v. Redd
Ill. · 1996 · confidence medium
Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992), citing McKaskle v. Wiggins, 465 U.S. 168, 183 , 79 L.
cited Cited as authority (rule) United States v. Fort
N.D. Ill. · 1996 · confidence medium
Faretta v. California, 422 U.S. 806, 821 , 95 S.Ct. 2525, 2534 , 45 L.Ed.2d 562 (1975); Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992).
discussed Cited as authority (rule) Gary N. Fields v. Edward W. Murray, Director, Virginia Department of Corrections (2×)
4th Cir. · 1995 · confidence medium
In Cain v. Peters, 972 F.2d 748, 749 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1310 , 122 L.Ed.2d 698 (1993), and Hamilton v. Groose, 28 F.3d 859, 862 (8th Cir.1994), the Seventh and Eighth Circuits both held that whether a defendant "clearly and unequivocally" invoked his right to self-representation was a question of fact and, therefore, the state court's finding on it was reviewed by the federal habeas court under section 2254(d). 9 47 Section 2254(d) commands that a state court's determination on a question of fact "shall be presumed to be correct," 28 U.S.C.
discussed Cited as authority (rule) Grippo v. Kelly (2×)
W.D.N.Y. · 1993 · confidence medium
Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992) citing McKaskle v. Wiggins, 465 U.S. 168, 183 , 104 S.Ct. 944, 953 , 79 L.Ed.2d 122 (1984).
cited Cited as authority (rule) Will Highfill v. Gary R. McCaughtry
7th Cir. · 1993 · confidence medium
Cain v. Peters, 972 F.2d 748, 749-50 (7th Cir.1992); 28 U.S.C. § 2254 (d).
discussed Cited "see" Isaaih X Ash v. State of Florida
Fla. Dist. Ct. App. · 2025 · signal: see · confidence high
See cf. Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992) (holding that a defendant can chose between the “equivalent” rights to court- appointed counsel and to self-representation, but that “the defendant is entitled to choose without a thumb on the scale”).
discussed Cited "see" Henderson v. United States
W.D.N.C. · 2021 · signal: see · confidence high
McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); see Cain v. Peters, 972 F.2d 748, 750 (7™ Cir.1992) (representation by counsel and self-representation are mutually exclusive entitlements in light of McKaskle).
discussed Cited "see" Kelly v. Solomon
W.D.N.C. · 2020 · signal: see · confidence high
McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); see Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992) (representation by counsel and self- representation are mutually exclusive entitlements in light of McKaskle).
discussed Cited "see" Rashaad v. United States
W.D.N.C. · 2020 · signal: see · confidence high
McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); see Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992) (representation by counsel and self-representation are mutually exclusive entitlements in light of McKaskle).
discussed Cited "see" Michelson v. Duncan
W.D.N.C. · 2019 · signal: see · confidence high
McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); see Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992) (representation by counsel and self- representation are mutually exclusive entitlements in light of McKaskle).
discussed Cited "see" Owens v. United States
W.D.N.C. · 2019 · signal: see · confidence high
McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); see Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992) (representation by counsel and self- representation are mutually exclusive entitlements in light of McKaskle ).
discussed Cited "see" United States v. Carter, Philip W. (2×)
7th Cir. · 2006 · signal: see · confidence high
See Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992).
discussed Cited "see" Bennett v. Duckworth
N.D. Ind. · 1995 · signal: see · confidence high
See Cain v. Peters, 972 F.2d 748 (7th Cir.1992) (waiver of right to counsel) (“ “Waiver’ in criminal law is a fact-specific concept, to which the presumption of correctness in 28 U.S.C. § 2254 (d) applies.”), cert. denied, 507 U.S. 930 , 113 S.Ct. 1310 , 122 L.Ed.2d 698 (1993); see also Gomez, 29 F.3d at 1134 (waiver of right to conflict-free representation).
discussed Cited "see" Harry Gomez v. Rodney J. Ahitow, Warden, and Roland W. Burris (2×) also: Cited "see, e.g."
7th Cir. · 1994 · signal: see · confidence high
See Cain, 972 F.2d at 749 (stating that "~ 2254(d) is no less applicable to findings by appellate courts than to findings by trial courts"); Bobo, 969 F.2d at 391 (same).
discussed Cited "see, e.g." State v. Towle
N.H. · 2011 · signal: see also · confidence medium
See Frazier-El, 204 F.3d at 573 (Murhaghan, J., dissenting); see also Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992) (rejecting idea that right to counsel is the “preferred right, so that defendants have to be especially articulate or forceful to win the right to represent themselves.
cited Cited "see, e.g." Christopher v. State
Del. · 2007 · signal: see also · confidence medium
Id.; see also Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992); Buhl v. Cooksey, 233 F.3d 783 , 802 n. 20 (3d Cir.2000). 16 .
Luther CAIN, Petitioner-Appellant,
v.
Howard PETERS and Roland Burris, Respondents-Appellees
90-3737.
Court of Appeals for the Seventh Circuit.
Sep 14, 1992.
972 F.2d 748
Luther Cain, pro se., Nathan P. Maddox, Office of Atty. Gen., Criminal Appeals Div., Springfield, Ill., for respondents-appellees.
Easterbrook, Kanne, Wood.
Cited by 91 opinions  |  Published
EASTERBROOK, Circuit Judge.

During the proceedings leading to his trial for murder, Luther Cain asked the judge to replace his court-appointed attorney. Cain told the judge that he did not trust the public defender but could not articulate the reason. When the judge declined to appoint a new lawyer for him, Cain inquired whether he was entitled to represent himself. The judge said yes, and Cain stated: “I choose at this point in time to represent myself.” This led the judge to deliver the usual warnings about the folly of rolling lawyer and client into one. Cain rejoined that he had nothing to lose because he was not “getting adequate representation”.

Before discharging counsel, the judge sent Cain to see a psychiatrist. Counsel’s request for a mental examination had been granted earlier, as counsel was concerned that Cain was not competent to stand trial. The psychiatrist reported that Cain was unfit for trial with the public defender as his representative but might well be able to assist in his defense with a lawyer from the private bar. Instead of throwing back this odd report and obtaining another — aversion to public defenders not being a recognized mental illness — the judge relieved the public defender and appointed a private attorney as Cain’s lawyer.

Cain never again mentioned the possibility of self-representation. But his lawyer argued on appeal from his conviction that he had been denied the right recognized by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). See also, e.g., McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). The appellate court concluded that Cain acquiesced in representation by counsel at trial, and thus waived, by conduct, his right to represent himself. People v. Cain, 171 Ill.App.3d 468, 473, 121 Ill.Dec. 887, 890, 525 N.E.2d 1194, 1197 (4th Dist.), leave to appeal denied, 122 Ill.2d 581, 125 Ill.Dec. 224, 530 N.E.2d 252 (1988). The federal district court later denied Cain’s petition for a writ of habeas corpus, reasoning that, because self-representation is disfavored, a “clear and unequivocal” assertion of that right is essential, and that Cain had not made such an assertion.

Although Cain denies that a “clear and unequivocal” invocation is necessary, and says that he satisfied this standard anyway, the antecedent question is: What was wrong with the state court’s conclusion? The district judge made a de novo decision, never mentioning the holding of the state’s appellate court. “Waiver” in criminal law is a fact-specific concept, to which the presumption of correctness in 28 U.S.C. § 2254(d) applies. See Lewis v. Huch, 964 F.2d 670, 674-75 (7th Cir.1992); Sotelo v. Indiana State Prison, 850 F.2d 1244, 1247 n. 6 (7th Cir.1988); Perri v. Director, 817 F.2d 448, 451 (7th[*750] Cir.1987). And § 2254(d) is no less applicable to findings by appellate courts than to findings by trial courts. Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981). Collateral review is not a repechage round in which the loser in one system of courts starts from scratch in another. Neither Cain nor the district judge has provided a reason to disregard the state court’s finding that Cain waived his right to conduct his own defense by remaining mute when the court appointed a new lawyer for him and not raising the subject at trial. He had plenty of time to protest but did not, which usually means surrender.

Only if waiver by conduct (more accurately, forfeiture) is impossible would we need to decide whether Cain’s initial request was sufficiently blunt. Some rights linger unless expressly and intelligently repudiated; the right to the assistance of counsel at trial is one of these. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Others must be asserted initially, but once asserted cannot be relinquished in silence; the right to the assistance of counsel during interrogation is among these. Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981); Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). Because entitlements often conflict, however, and the defendant may have good reason for choosing one entitlement over another, the norm is that the accused must let the court know how he prefers to proceed. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); United States v. Martinez, 883 F.2d 750 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 (1991). Anything else is an effort to sandbag the court and the opposition, to seek an acquittal with an ace up the sleeve to be whipped out in the event of conviction. Cf. United States v. Busche, 915 F.2d 1150 (7th Cir.1990); United States v. Bauer, 956 F.2d 693 (7th Cir.1992).

Representation by counsel and self-representation are mutually exclusive entitlements, in light of the Supreme Court’s statement in McKaskle that the sixth amendment does not create a right to hybrid representation. 465 U.S. at 183, 104 S.Ct. at 953. Given the rule that only an informed, and ceremonial, waiver surrenders the right to a lawyer at trial, it follows that a silent or equivocating defendant has counsel, and correspondingly forfeits the inconsistent right to represent himself. Faretta said as much in remarking that a defendant who wants to proceed unaided must be allowed to do so “[ujnless the accused has acquiesced in such representation”. 422 U.S. at 821, 95 S.Ct. at 2534. The implication is clear: defendants forfeit self-representation by remaining silent at critical junctures before or during trial. This is not because, as some courts have suggested, counsel is the preferred right, so that defendants have to be especially articulate or forceful to win the right to represent themselves. Stano v. Dugger, 921 F.2d 1125, 1143 (11th Cir.1991) (in banc); Tuitt v. Fair, 822 F.2d 166, 177 (1st Cir.1987). The two rights are equivalent; the defendant is entitled to choose without a thumb on the scale; but because counsel is the normal and prudent choice, it is the default outcome.

Cain had only to speak up. Despite having ample time to do so, he kept his counsel (in both senses). Cain’s behavior is understandable, because his initial demand to conduct his own defense grew out of dissatisfaction with the public defender. He wanted, and got, a different lawyer. The state court’s finding of waiver is not subject to challenge under § 2254(d), so Cain is not entitled to collateral relief.

Affirmed.