What is the test for dismissing a motion to dismiss a motion for writ of habeas corpus?

Respondent brings its motion to dismiss entirely on the statute of limitations, both as to the 2003 conviction and the much later resentencing proceedings. There is no doubt that review of the 2003 conviction itself is time barred. Although respondent's motion to dismiss does not address whether the petition should be dismissed for failure to state a cognizable claim as well, the court will address the successive nature of the petition and, in the alternative, the merits, insofar as this petition relates to his 2015 resentencing claim. Title 28 U.S.C. section 2244 (b)(1) prohibits the filing of successive petitions. Finally, Rule 4 of the Rules Governing Section 2254 Cases provides, in pertinent part: "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." The Advisory Committee Notes to Rule 8 of those same rules indicate that the court may deny a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petitioner has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001). Accordingly, the court will recommend a dismissal based on the successive nature of the resentencing, or in the alternative, reach the merits of the resentencing petition, and recommend a summary denial.²