¶1concurring in result.
¶2I concur in result because James Hamilton's petition for post-conviction relief and successive petition form conclusively show he is not entitled to relief because he fails to assert that his counsel in his initial post-conviction proceeding was ineffective for failing to assert that his appellate counsel was ineffective. However, in my opinion, the post-conviction court erred in dismissing Hamilton's petition pursuant to Ind. Post-Conviction Rule 12(b) because that section concerns the lack of merit of an asserted error rather than the affirmative defense of prior adjudication or abuse of post-conviction process, a defense which the State did not raise in its answer. Nevertheless, the error is harmless because the post-conviction court should have denied the petitions pursuant to Ind.Post-Conviction Rule 1(4)(f).